Singh v Minister for Immigration and Border Protection
[2016] FCA 71
•9 February 2016
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2016] FCA 71
Appeal from: Singh v Minister for Immigration & Anor [2015] FCCA 2380 File number(s): SAD 351 of 2015 Judge(s): PERRY J Date of judgment: 9 February 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing an application for judicial review of Migration Review Tribunal Decision – where student visa was refused because the appellant did not provide evidence of English language proficiency and did not satisfy the genuine temporary entry criterion in the Migration Regulations 1994 (Cth) – whether Tribunal erred in failing to adjourn the hearing to allow the appellant further time to prepare paperwork Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39
Date of hearing: 9 February 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr P d’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs ORDERS
SAD 351 of 2015 BETWEEN: GURBIR SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
9 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs fixed in the sum of $6439.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)PERRY J:
1. INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal, which is now the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Student (Temporary) (Class TU) (Subclass 572) visa (the visa) pursuant to the Migration Act 1958 (Cth) (the Act).
2. BACKGROUND
2.1 The application for a visa and delegate’s decision
The appellant is a citizen of India who arrived in Australia in February 2009 as the holder of a student visa. On 11 September 2013, the appellant applied for the visa with the Department of Immigration and Citizenship (the Department), as it then was titled. On 19 September 2013, an officer of the Department wrote a letter to the appellant requesting additional information and documents from him, including a request to provide evidence of the requisite English language proficiency. On 17 October 2013, an email was received that included a number of documents, but that email did not provide any information that demonstrated English language proficiency.
On 28 October 2013, a delegate of the Minister refused the visa application on the basis that the appellant did not provide evidence of English language proficiency and so did not meet the legal requirement in cl 572.223(2) in Schedule 2 and cl 5A404 in Schedule 5A of the Migration Regulations 1994 (Cth) (the Regulations).
2.2 The decision of the Tribunal
The appellant filed an application for review to the Tribunal on 18 November 2013. On 19 August 2014, an officer of the Tribunal wrote a letter to the appellant inviting him to appear before the Tribunal. No reason has been given as to the reason for the delay in the invitation to appear. In that letter, the officer requested that the appellant provide all documents upon which the appellant intended to rely to meet the criteria for the visa. The letter further requested the appellant provide certain information to the Tribunal, including:
1.a copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Document/s that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant your explanation.
5.Documents that demonstrate you have sufficient funds , or access to funds, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period…
6.Evidence you meet the English language proficiency requirements (the requirements depend on your particular assessment level and visa subclass). (Emphasis added)
The Tribunal requested that the information and evidence be provided to the Tribunal at least 7 days before the hearing date.
On 16 September 2014, the appellant sent a letter to the Tribunal, advising that he had not received the letter of 19 August 2014 until 15 September 2014, because the address he had earlier provided to the Tribunal to send correspondence had since changed. He requested that the Tribunal allow him more time to prepare all of the paperwork. On 22 September 2014, the day of the hearing, the appellant sent a further letter to the Tribunal requesting an extension of time to prepare his documents, but attaching “the current enrolment” and a booking receipt for a test under the International English Language Testing System (IELTS).
On 22 September 2014, the Tribunal affirmed the delegate’s decision not to grant the appellant a visa. At the hearing on the same day, the Tribunal had advised the appellant that the issues for discussion included whether he met the English-language requirements, and whether he was a genuine applicant for entry and stay temporarily in Australia as a student. The Tribunal heard evidence from the appellant on his previous enrolments, current enrolment status, and his academic performance. As to his English language proficiency, the appellant informed the Tribunal that he had not made any attempts to undertake the IELTS tests since the decision of the delegate on 18 October 2013. This was because he had spent his money at the casino, and that he had only recently been told by an agent that he was required to undertake the IELTS.
The Tribunal considered it to be “futile” to grant further time to the appellant to prepare his materials, in which regard:
The tribunal noted that the applicant had clearly been on notice for a considerable time about the need to meet the English-language proficiency requirements and had not shown any effort to make those requirements. The tribunal indicated it had considered the applicant’s evidence but did not propose to grant further time for the applicant to undertake an IELTS test in the context of his poor academic performance in the 5 ½ years since his arrival in Australia, the evidence he had given as to the reasons for his academic performance and his history of enrolments. The tribunal stated that it found that the applicant was not a genuine applicant for entry and stay temporarily in Australia as a student. In such circumstances the tribunal advised the applicant that it would be futile to grant further time to undertake an IELTS test. The tribunal advised the applicant it was affirming the decision under review.
The Tribunal found that, having regard to the appellant’s proposed course of study, the relevant subclass of visa applicable to the appellant was Subclass 572 and the issue in the present case was whether the appellant met at the time of decision criterion applicable to that subclass in clause 572.223 of Sch 2 to the Regulations (the genuine temporary entrant criterion). That clause provided that:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2)An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
As the tribunal also pointed out at [9] and [10] of its reasons:
In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for Student Visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
Ÿthe applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
Ÿthe applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
…
Ÿany other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal found that the appellant was not a genuine applicant for entry and stay temporarily in Australia as a student. Its reasons for so finding are set out at [18]-[19] of its reasons, namely that:
As set out above, the tribunal does not consider the applicant to be a genuine applicant for entry and stay temporarily in Australia as a student. His history of academic performance over 5 ½ years in the tribunal’s view is poor. He has not studied for 2 years which the tribunal considers is contrary to the applicant’s claim to be a genuine applicant for entry and stay in Australia temporarily as a student. He gave evidence that he has not done so due to his gambling habits. Despite having his student visa application rejected in October 2013 the applicant made no arrangements to undertake an IELTS test or other means by which he could demonstrate he met the English-language proficiency requirements until after he was advised of the tribunal hearing. He claims not to have had the money to do so because of his gambling habits. Although he claims now to have overcome that problem and has had himself barred from the casino, the tribunal notes that the applicant has not studied since September 2012 and that his stated failure to book an IELTS test any earlier than October 2014 was because he didn’t have the funds to do so. The tribunal does not necessarily accept that the applicant in fact lost all his funds of the casino as he claimed, noting that it has some doubts as to the credibility of the applicant’s evidence. He initially told the tribunal for example that he had last studied in the 2013 and only after information from PRISMS records was put to him did he concede that he had not done so and had not done so since September 2012.
Although the applicant had provided a balance confirmation certificate from the HDFC bank of India the tribunal has little confidence that he would apply those funds for the purpose of future study. On his own evidence he has applied funds from his parents which were intended to study for other purposes in the past. The tribunal also has little confidence that the applicant would complete courses of education in the future which would be of assistance to him in a future career. Rather, it appears that he is seeking to prolong his stay in Australia for reasons other than those connected with academic achievement or possible future vocations.
The Tribunal concluded that the appellant did not meet clause 572.223(1)(a). Furthermore, as the other subclasses apart from subclass 580 within visa class TU all contained an identical requirement, the Tribunal found he did not meet the requirements of these subclasses. Nor was there any material before the Tribunal suggesting that the appellant met the prescribed criteria for a subclass 580 (Student Guardian) visa. Accordingly, the Tribunal found that the appellant did not meet an essential criterion for the grant of a student visa and affirmed the delegate’s decision.
2.3 The decision of the Federal Circuit Court
The appellant sought review of the Tribunal’s decision in the Federal Circuit Court. On 2 September 2015, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s decision. The Federal Circuit Court emphasised its limited jurisdiction to review decisions by the Tribunal. In particular, the Federal Circuit Court explained at [20]-[21] that:
…the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.
Rather what an application for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. …
The Federal Circuit Court found no indication of any such error, finding that the Tribunal exercised its jurisdiction arising under the applicable regulation, and made logical findings of fact on the evidence available to it. As to the appellant’s request for an adjournment to allow the appellant to undertake the IELTS test, the Federal Circuit Court concluded that it was not unreasonable for the Tribunal to refuse the application for an adjournment.
3. CONSIDERATION
The sole ground of appeal against the decision of the Federal Circuit Court identified in the notice of appeal is that:
I want to appeal because I can provide all the documents that’s relevant. I want to complete my studies in Australia for bright future.
(All errors in the original).
The appellant, however, relied in his oral submissions upon two alleged errors by the Tribunal, namely that:
(1)in effect, his explanation for his poor academic record and gaps in enrolment should have been accepted by the Tribunal; and
(2)the Tribunal should have allowed his application for an extension of time in order to complete the language proficiency requirements by sitting for the IELTS test (the adjournment application);
Both of these submissions fairly fall, in my view, within the scope of the ground of appeal raised by the notice of appeal.
The first error alleged by the appellant does not identify a ground on which the Court below could review the Tribunal’s decision, and therefore does not identify any error in the decision of the Federal Circuit Court. Neither this Court, nor the Federal Circuit Court, has jurisdiction to grant a visa or to assess whether or not on the evidence the appellant met the criteria for the grant of a visa. This means relevantly here that neither the Federal Circuit Court nor this Court has power to decide whether or not it agrees with the Tribunal’s decision that the appellant does not on the evidence satisfy the genuine temporary entrant criterion in cl 572.223(1)(a) of Sch 2 to the Regulations. As the primary judge held, the jurisdiction of the Federal Circuit Court is limited to considering only the legality of the Tribunal’s decision to refuse to grant the appellant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). That means, as the primary judge held at [28]-[29] that:
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.
As previously indicated, jurisdictional error is a complex concept. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction.
I also agree with the primary judge that no other jurisdictional error is disclosed by the Tribunal’s finding that the genuine temporary entry criterion was not met. It is for the appellant to satisfy the Tribunal that he satisfied the criteria for a student visa (Abebe v Commonwealth (1999) 197 CLR 510 at 576) and in order to do so, it was necessary for the appellant among other things to satisfy the Tribunal that he was a genuine temporary entrant for the purposes of cl 572.223(1)(a). The Tribunal gave a rational and intelligible justification for its finding that it was not satisfied that that criterion was met at [18]-[19] of its reasons, including his poor academic performance as a student, his failure to study for two years and its doubts about the appellant’s explanation for that lapse in his studies, and the Tribunal’s lack of confidence about whether he would apply any further funds for the purposes of future studies given his evidence that in the past he has applied such moneys to other purposes: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). These reasons also demonstrate that in reaching its conclusion on the evidence the Tribunal has applied Direction No. 53, as it is bound to do by s 499 of the Act. Leaving aside the second ground identified in oral submissions which I address separately, I also consider that the appellant was given sufficient opportunity to put his case before the Tribunal, as the primary judge found at [33] of his reasons, given among other things that the Tribunal flagged in its invitation to the hearing the need to provide an explanation for, and any documentary evidence explaining, any gaps in his enrolments.
As to the second ground, the Minister correctly characterised the decision by the Tribunal as a decision to refuse an application “to adjourn the review” under s 363(1)(b) of the Act. It is not the case that the Tribunal must grant every application for an adjournment. As Hayne, Kiefel and Bell JJ said in Li at [82]: “it cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence.” However, the power to adjourn proceedings must, as the primary judge observed, be exercised reasonably: see the primary judge’s reasons at [36]. The reasons why the Tribunal refused the application are set out at [17] of its reasons, quoted at [8] above. In essence, the Tribunal held at the end of the hearing that, as it was not satisfied that the appellant met the genuine temporary entrant criterion, it followed that his application for the visa must be refused irrespective of whether or not he could satisfy the tribunal that he met the language proficiency criterion. The Tribunal’s decision that it was therefore “futile” to grant the appellant further time to undertake an IELTS test is a logical, rational and intelligible basis for its decision to refuse the adjournment application, as the primary judge held at [42] of his reasons.
It follows that the appeal must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 9 February 2016
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